Berger appeals, calls removal 'unconstitutional'

Published: Monday, June 17, 2013 at 12:30 a.m.

Last Modified: Monday, June 17, 2013 at 1:10 p.m.

Calling his removal unconstitutional, former New Hanover County Commissioner Brian Berger has filed a court appeal asking to be reinstated to the county board.

Berger was removed from the board May 20 following an amotion hearing. Commissioners voted 3-2 to oust him, with Berger and Commissioner Jonathan Barfield voting against the move.

The amotion hearing was approved by Berger's fellow commissioners after calls for his resignation went nowhere.

Board members said they feared for the county staff's safety, as well as their own, after Berger had a public run-in in March with Gov. Pat McCrory and his security team to hand out documents that threatened county staff members and accused both current and former officials of illegal activity.

Berger's case marked the first time an amotion has been successfully used to remove a North Carolina elected official in nearly a century, which could make it the new precedent for the state if upheld.

Chairman Woody White defended the board's use of the amotion process in a phone interview Monday.

“We took action we felt was necessary to take and we will respect the process the court has to follow,” White said.

In the appeal, which was filed late last week in New Hanover County Superior Court, Berger alleges that he did not receive due process in the hearing and that his fellow commissioners violated the state constitution by removing him.

“Both the loss of my seat as county commissioner, as well as the violations of my Constitutionally protected rights, constitute irreparable injuries that have taken place since the amotion hearing,” Berger wrote in a signed affidavit that accompanied the appeal.

Berger requests two court hearings in his appeal – one before the court to determine whether or not he is fit to serve and another to determine whether he received a “fair and impartial trial” during the amotion hearing. The appeal also asks the Supreme Court to take a formal measure preventing the commissioners from ever using the amotion process to remove a board member again.

Berger and his lawyer, Christopher Anglin of Raleigh, did not respond to multiple requests for comment Monday.

County attorneys Wanda Copley and Sharon Huffman will represent the commissioners for all court proceedings as a result of the appeal.

Berger also asks for a temporary restraining order and injunction preventing the commissioners from appointing someone to fill his seat and for the court to reinstate him until a trial can be held.

The rules approved by the commissioners during the amotion hearing stated that the county cannot move forward with appointing a new commissioner to fill Berger's seat for at least 30 days following his removal. The 30-day period will end Thursday, but the board has not taken any steps to find a replacement at this time.

In his signed affidavit, Berger said he expects his “replacement to be named at the earliest possible opportunity.”

Finally, Berger asks for full compensation for attorney's fees and trial costs, as well as any “further relief as the court may deem just and equitable.”

Berger is still on the New Hanover County payroll until June 24. In the time between the amotion hearing and the June cutoff, Berger will receive nearly $2,000, as well as $420 for a vehicle stipend and $75 for a cellphone stipend.

<p>Calling his removal unconstitutional, former New Hanover County Commissioner <a href="http://www.starnewsonline.com/section/topic9976"><b>Brian Berger</b></a> has filed a court appeal asking to be reinstated to the county board. </p><p>Berger was removed from the board May 20 following an amotion hearing. Commissioners voted 3-2 to oust him, with Berger and Commissioner Jonathan Barfield voting against the move.</p><p>The amotion hearing was approved by Berger's fellow commissioners after calls for his resignation went nowhere.</p><p>Board members said they feared for the county staff's safety, as well as their own, after Berger had a public run-in in March with Gov. Pat McCrory and his security team to hand out documents that threatened county staff members and accused both current and former officials of illegal activity.</p><p>Berger's case marked the first time an amotion has been successfully used to remove a North Carolina elected official in nearly a century, which could make it the new precedent for the state if upheld.</p><p>Chairman Woody White defended the board's use of the amotion process in a phone interview Monday.</p><p>“We took action we felt was necessary to take and we will respect the process the court has to follow,” White said. </p><p>In the appeal, which was filed late last week in New Hanover County Superior Court, Berger alleges that he did not receive due process in the hearing and that his fellow commissioners violated the state constitution by removing him.</p><p>“Both the loss of my seat as county commissioner, as well as the violations of my Constitutionally protected rights, constitute irreparable injuries that have taken place since the amotion hearing,” Berger wrote in a signed affidavit that accompanied the appeal.</p><p>Berger requests two court hearings in his appeal – one before the court to determine whether or not he is fit to serve and another to determine whether he received a “fair and impartial trial” during the amotion hearing. The appeal also asks the Supreme Court to take a formal measure preventing the commissioners from ever using the amotion process to remove a board member again.</p><p>Berger and his lawyer, Christopher Anglin of Raleigh, did not respond to multiple requests for comment Monday.</p><p>County attorneys Wanda Copley and Sharon Huffman will represent the commissioners for all court proceedings as a result of the appeal. </p><p>Berger also asks for a temporary restraining order and injunction preventing the commissioners from appointing someone to fill his seat and for the court to reinstate him until a trial can be held.</p><p>The rules approved by the commissioners during the amotion hearing stated that the county cannot move forward with appointing a new commissioner to fill Berger's seat for at least 30 days following his removal. The 30-day period will end Thursday, but the board has not taken any steps to find a replacement at this time.</p><p>In his signed affidavit, Berger said he expects his “replacement to be named at the earliest possible opportunity.”</p><p>Finally, Berger asks for full compensation for attorney's fees and trial costs, as well as any “further relief as the court may deem just and equitable.”</p><p>Berger is still on the New Hanover County payroll until June 24. In the time between the amotion hearing and the June cutoff, Berger will receive nearly $2,000, as well as $420 for a vehicle stipend and $75 for a cellphone stipend.</p><p></p><p>Ashley Withers: 343-2223</p><p>On <a href="http://www.starnewsonline.com/section/news41"><b>Twitter</b></a>: @AshleyWithers</p>